Orman et al. v. Keith et al.

Orman et al. v. Keith et al. Appeal — not based upon bill of exceptions. An appeal may he prosecuted without bill of exceptions; imperfections in the latter cannot he alleged in support of a motion to dismiss. Appeal bond — approval in vacation. An appeal bond cannot he approved in vacation without an order of court, and the approval of the clerk of the district court, given in vacation without such order, is inoperative. Appeal bond — approval not amendable. The omission to procure the bond to he approved according to law cannot he supplied by amendment. Appeal from District Court, Arapahoe County. Upon motion to dismiss the appeal, Mr. L. B. France, in support of the motion. Mr. S. E. Browne, contra. [MAJORITY — Per Curiam.] Per Curiam. Appellees move to dismiss this appeal because of alleged imperfections in the bill of exceptions, and because the appeal bond was approved by the clerk of the court below in vacation, there being no order of that court authorizing such approval. Inasmuch as appellants were entitled to prosecute an appeal from the judgment of the district court, whether there was any exception to any of the proceedings in that court or not, we cannot, upon this motion, consider the first objection. As to the appeal bond, we think that there should be an order of the district court directing the clerk to approve the bond. The statute (3 Sess. 116) declares that the clerk may approve the bond, provided the order allowing the appeal shall so direct. In this case, the order allowing the appeal contains no such direction, and the act of the clerk approving the bond, in the absence of such provision, is inoperative. Nor can appellants be allowed to file a new bond in this court under that provision of the statute which authorizes defective appeal bonds to be amended in the discretion of the court. This appeal bond is not defective, but appellants failed to obtain the approval of the bond by the district court as the law directs, and for this reason the appeal must be dismissed, with costs. Appeal dismissed.